At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.

Maryniuk on Doré

The Supreme Court’s decision in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 continues to be one of its most consistently criticized. It was, for instance, one of the most frequently mentioned as being among the Court’s worst by the participants in our recent 12 Days of Christmas symposium. Even more recently, Doré and the concept of “Charter values” as the touchstone of judicial review of administrative decisions implicating the Canadian Charter of Rights and Freedoms was the subject of a fascinating discussion between Justices Lauwers and Sossin, expertly moderated by co-blogger Mark Mancini, at this weekend’s Runnymede Conference.

So it is a real pleasure for me to announce that we are shortly going to publish a guest post on Doré by Jonathan Maryniuk, a lawyer with Kuhn LLP who, among other things, represented Trinity Western University in its challenge the denial of accreditation to their proposed law school before the courts in British Columbia and the Supreme Court. This has, of course, given Mr. Maryniuk an opportunity to reflect a great deal on the Doré approach, which was crucial in that litigation, and I am very much looking forward to his sharing his insights with us.

John Finnis and the Law Society

Would the Law Society of Ontario punish a scholar for failing to promote equality, diversity, and inclusion? What about those who defended such a scholar’s academic freedom?

One of the less appreciated issues with the Law Society of Ontario’s demand that its members produce “statements of principles” acknowledging a purported “obligation to promote equality, diversity and inclusion generally, and in [one’s] behaviour towards colleagues, employees, clients and the public” is that it is inimical to academic freedom and the freedom of expression of scholars. This problem is neatly illustrated, however, by the story of the latest attack on an academic who happens to dissent from politically correct views.

The academic in question is John Finnis, “a giant of jurisprudence” in the words of Jeremy Waldron, another such giant himself. Robert George has posted a fairly detailed review of Finnis’s oeuvre (drawn from published work) over at Mirror of Justice (detailed, but still incomplete ― there is, understandably, no mention there of the not insignificant role Professor Finnis played in the patriation of the Canadian constitution; fortunately, he has told the story himself). But the most important point for the present purposes is elided in Professor George’s description: as Brian Leiter put it on his blog, Professor Finnis “has written foolish and sometimes quite ugly things about gay people for years”. And so, as the Guardian reports, “[m]ore than 400 people have signed a petition calling for [Professor] Finnis to be removed from teaching”. Now, there is no allegation that Professor Finnis has actually discriminated against a specific student. The complaint is based entirely on his scholarship which, however distasteful one might find it, is widely regarded as formidable and important ― if also, in many people’s view, profoundly misguided.

Being a generally acknowledged giant and not just an unknown graduate student who can be bullied into submission or chased out of the academy without anyone paying attention, Professor Finnis has been defended by other prominent scholars. Les Green, writing at his blog Semper Viridis, points out that “[t]o fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom”. Professor Leiter use stronger language, writing that the students demanding to be got rid of Professor Finnis “disgrace themselves and their university”. Professor Waldron put it best:

The campaign to have John Finnis removed is preposterous. His views on many things-torture, assisted suicide, sexuality-are uncongenial to some of us … . But defending & elaborating those views doesn’t amount to discrimination[.]

I agree with all this (and, just for the record, I also find Professor Finnis’s views on many things uncongenial, to put it mildly). And so, to come back to the reason for this post, I have a couple of questions for the Law Society of Ontario.

First, if Professor Finnis were a member, would you disbar him? Now, I suspect that he would not in fact conform to the Statement of Principles requirement, much like I and many others, and you’d go after him for that. But suppose he’d ticked the box through oversight. I think it’s fair to say that, whatever their scholarly qualities and interest as an intellectual foil, Professor Finnis’s writings don’t do much for equality, diversity, and inclusion. Would you sanction him for failing to promote these values? Do you think this is compatible with his academic freedom?

And second, what would you make of people like Professors Leiter, Waldron, and Green, assuming that they had not objected to the Statement of Principles requirement? Would you deem speaking out in defence of the academic freedom of a scholar whose work opposes (certain kinds of) equality, diversity, and inclusion a violation of one’s Statement of Principles commitments? After all, if one understands equality, diversity, and inclusion along demographic rather than intellectual lines, as you pretty obviously do, it is at least arguable that defending a scholar with Professor Finnis’s views opposes rather than promotes them. Would you sanction scholars who undertake such a defence because they conclude that, in this instance, academic freedom is a more pressing concern than equality, diversity, and inclusion, on the basis that they fail to “promote” them “generally”? Do you think that would be compatible with academic freedom?

The law society might, I suppose, point to its now-mostly anodyne explanation of what the Statement of Principles requirement is supposedly about, which is largely about complying with anti-discrimination legislation and of no real relevance to academics. Yet the explanation is not the requirement. It has replaced a previous version that spoke of “demonstrat[ing] personal valuing of equality, diversity and inclusion”… and might again be replaced by something that would actually make sense of the never-retracted demand that lawyers ― including lawyers who are academics rather than practitioners ― “promote equality, diversity and inclusion generally”, and not only within their professional relationships with clients, employees, and the like.

In New Zealand, universities are required ― by statute ― to “to develop intellectual independence” in their students, and to “accept a role as critic and conscience of society”. A different provision “declare[s] to be the intention of Parliament … that academic freedom … be preserved and enhanced”, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I’m not sure if there is an equivalent legislative framework in Ontario, but at any rate these seem to me to be sound moral guidelines ― principles to abide by, if you like ― for any free society that values learning and scholarship. I’d say that, for an institution that is statutorily required “to protect the public interest”, the Law Society of Ontario shows very little respect indeed for the fact that the public interest requires the existence of people and institutions capable of independent thought, however far astray they may sometimes go in the process of exercising this faculty.

The Canadian Legal Mandarinate

Why we ran the 12 Days of Christmas symposium

On behalf of Leonid and I, I’d like to thank all of our readers for their interest in our recent 12 Days of Christmas symposium, which featured contributions from scholars on their five least favourite Supreme Court cases of the last fifty years. What started as a festive and fun holiday feature has made, I think, a much broader point: rather than glowing coverage of what the Supreme Court does, there is an audience and a need for more biting, critical commentary in Canadian law.

I say this because a not-infrequent response to our symposium asked why we needed to be so pessimistic. Why not ask people for their favourite Supreme Court cases? Doesn’t the world need more positivity?

Maybe it does, but I’m not sure there is a lack of it towards the Supreme Court in Canadian law. Of course, I don’t have empirical evidence to show that Canadian scholars are too deferential towards the Supreme Court and its judges. But it is interesting why our symposium struck a chord in the first place.   Over on profsblawg, Paul Horwitz explains why this might be. Horwitz received his law degree in Canada (University of Toronto), and notes that he practiced and published there as well. It’s worth reproducing a large part of what he said about his impressions of Canadian legal academic culture. It isn’t good:

 

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers.

[…]

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal–faculty-run and peer-reviewed, as most of them are–and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

[…]

If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country’s “national values.”

This a powerful anecdotal account of how Canadians tend to react to those in judicial authority, and in response to those who do engage in critical analysis. Speaking for myself, I am unsurprised by Horwitz’s comments after writing this post on the reaction to Justice Abella’s comments about the role of the Supreme Court as the definitive font of authority on “Canadian values.” Many argued that Leonid and I went too far by drawing particular attention to Justice Abella’s specific comments. Others suggested that we should always tread carefully when criticizing judges, that we should always presume good-faith, and that we should speak about decisions and institutions rather than personalities.

As I’ve said before, if judges are going to assume the mantle of constitutional guardians, we all have the right (and the duty) to monitor their decisions. Given the heightened role that court has arrogated to itself, I see no quarrel with concerning ourselves with what the judges think and say, as well. But this isn’t strictly the point. Instead, it is enough to say that we already do a lot of celebrating of judges and judicial decisions in Canada. There was, of course, the rather drawn-out farewell tour for Chief Justice McLachlin, with growing tributes and nary a peep about her judicial missteps. Academic articles were written celebrating her as the “expositor of our constitutional values.” Justice Abella has also received her fair share of celebration, among academics and the bar alike. I think there is probably an interesting correlation between this judicial idolatry and the rather depressing statistics on ideological uniformity in law schools, but I need not explore that connection here.

I view the 12 Days Symposium as a product of supply and demand principles. If we take Horwitz seriously, and my own experience is consistent with his, then we have an abundant supply of “positive,” more deferential legal commentary in Canada. What is missing, and what our 12 Days contributors arguably provided, was a breaking point from the consensus. And judging from our readership and the spirit of the contributions, I think there is a real demand for this sort of work in Canadian legal academic circles.  Of course, I think this is broadly consistent with the entire premise of Double Aspect to begin with.

To be fair, a lot legal scholarship can’t and shouldn’t be put into the “positive” or “negative” column. Some work is empirical, and that work is in low supply in Canada, at least when it comes to public law. Robert Danay has done us a great service, in this respect, with his empirical work on Dunsmuir. But there is a decidedly normative bent to Canadian legal scholarship, and to that extent, there is such a thing as critical work.  Though I cannot purport to speak from great experience (and so I qualify my statements to a large degree), I view legal scholarship is something like calling balls and strikes. Sometimes, the Court gets it right, and we try to highlight that on Double Aspect when we can. Others do so too. But there is a distinct lack of critical commentary, and our contributors supplied the demand.

This answers the question of why we chose not to run a symposium focusing on the Supreme Court’s best cases—this is already out there if you look hard enough. And it’s also the reason why, speaking for myself, there is no need for an endless veneer of deference towards the judiciary. I can’t speak from experience to definitively conclude that there is a Canadian legal mandarinate. But I can say that there appears to be reticence about criticizing decisions and judges.

Day Twelve: Leonid Sirota

It’s easy enough to make a list of very bad Supreme Court decisions ― there is no shortage of material. The challenge, rather, is to reduce the list to some fixed number. Anyway, here’s my attempt, influenced in part by a wish to present cases from a variety of areas and to highlight some that have not been mentioned by other participants in this symposium. Here’s what promoting diversity and inclusion can look like!

The Breathalyzer Reference, [1970] SCR 777

As part of an omnibus criminal law reform bill, Parliament imposed breath tests for drivers suspected of being intoxicated, but also provided that police were to furnish a suspect with a sample of his own breath, presumably for independent analysis. Only, when the government proclaimed the impaired driving provisions into force, it left out the breath sample requirement. The issue for the Supreme Court was whether this was a permissible use of the bill’s section allowing the government to proclaim its “provisions” into force at the time of its choosing.

By five votes to four, the Court said that it was. Despite vigorous dissents pointing out that the government effectively re-wrote what Parliament had enacted without having any clear authority to do so, Justices Judson and Hall both insisted that “provisions” could be any parts of the bill. And if, as Justice Hall diplomatically put it, “proclaiming parts only of” the scheme enacted by Parliament “may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament”, that wasn’t the courts’ concern. Justice Laskin (as he then was) was even worse, arguing that “we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament”, and should moreover let the government define the word “provisions” as it pleases.

The Breathalyzer Reference itself is somewhat obscure now. Yet its abdication of the judicial duty to interpret the law and to see to it that Parliament’s will is carried out, antithetical to the separation of powers and the Rule of Law, still infects the Supreme Court’s jurisprudence ― above all in administrative law.

Nova Scotia Board of Censors v McNeil, [1978] 2 SCR 662

McNeil, as it’s usually referred to, is another decision that’s not especially well known, though it’s sometimes cited for its endorsement of a “presumption of constitutionality”. Yet the very fact that a “Board of Censors” was involved should ring alarm bells. This board had been given vast powers consonant with its name, and used them to ban The Last Tango in Paris from being shown in Nova Scotia, without even providing an explanation. The claim was that provincial legislation authorizing film (and theatre) censorship was, to that extent, an invasion of the federal criminal law power, and thus unconstitutional. 

A 5-4 majority, in reasons by Justice Ritchie, rejected this argument. In part, its reasons are based on the idea that regulating movie theatres is no different from regulating any other kinds of business ― say, farms or restaurants ―, which provinces can do under their “property and civil rights” power. But the majority also insists that provinces can regulate morality to reflect local sensitivities. In making this case, the majority relies heavily on R v Quong Wing ― a decision that upheld a sexist and racist segregationist Saskatchewan statute intended to “protect” “white women or girls” from interacting with “Chinamen”, and is a good candidate for the worst and most shameful Supreme Court decision of all time. This reasoning could just as easily have been used to uphold the notorious “Padlock Law” struck down in Switzman v Elbling ― to which the majority conveniently doesn’t refer. 

Incidentally, McNeil was handed down (though it hadn’t been heard) simultaneously  with Dupond v City of Montreal, which features in Professor St-Hilaire’s contribution. January 19, 1978 was not a good day for the Supreme Court of Canada.

Provincial Judges’ Remuneration Reference, [1997] 3 SCR 3

Unlike the in the other cases on my list, the majority opinion in the Provincial Judges’ Remuneration Reference, written by Chief Justice Lamer, is animated by a principle of undoubted constitutional value: the independence of the judiciary. In response to legislation cutting judicial salaries, along with the salaries of other public employees, in a number of provinces, the Court was preoccupied with upholding the reality and perception of judicial independence in Canada. Even so, Chief Justice Lamer’s opinion is perhaps the nec plus ultra of what I have called “constitutionalism from the cave” ― the enforcement of an ideal constitution that we perhaps ought to have, but don’t.

The constitutional text guarantees the independence of only some courts: namely, superior courts and courts of criminal jurisdiction. No matter, said the Chief Justice. He found that the preamble of the Constitution Act, 1867 implemented the principle of judicial independence for all courts (alongside other principles, such as democracy and federalism). One wonders why in 1867 and 1982 people bothered with writing detailed constitutional texts. And then, to give effect to the principle of judicial independence, the Supreme Court required the creation of independent commissions that would propose the terms of judicial remuneration to legislatures. This too, needless to say, with no textual basis.

The question of whether a constitutional text can have implications beyond the letter of its provisions is not an easy one. For what it’s worth, I think the answer is at least sometimes in the affirmative . But these implications cannot be drawn from a preamble while ignoring the text itself. Nor is it plausible that complex institutional arrangements are constitutionally required if the constitution says nothing about them.

Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827 

The decision to uphold limits on the ability of members of the civil society to spend money to persuade voters during an election campaign, limits so low that even a single one-page advertisement in a national newspaper would have broken them, illustrates many of the pathologies in the Supreme Court’s Charter jurisprudence. There is the conviction that the Court knows which speech is a valuable in a free and democratic society (that of politicians) and which is not (in this instance, everyone else’s). There are mistaken guesses masquerading as common sense (it’s the wealthy whom spending limits silence ― yet we know, in fact, that in Canada it’s “ordinary” people pooling their resources together through unions and NGOs who are prevented from making themselves heard). There is the uncritical deference to a self-interested legislature (“a reasoned apprehension of … harm”, supported by no evidence, is enough to curtail fundamental freedoms).

None of these themes is a constant in the Court’s Charter cases, but each pops up again and again. Harper is arguably unusually bad in uniting them all ― and it does so in the service of upholding a law that could easily be used to ban books, and is now being expanded into a system of increasingly comprehensive political censorship.

Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293

One  might plausibly have filled this “top” five with just administrative law cases from the past decade. Edmonton East is probably not the most consequential of them but, like Harper, it neatly encapsulates a variety of pathologies that afflict its area of the law. The Supreme Court was asked to review a decision of a municipal valuation commission on a legal issue on which the commission had not explained its reasoning at all. The applicable legislation provided for appeals to the courts on questions of law. Nevertheless, the majority opinion by Justice Karakatsanis insisted that the commission was an expert decision-maker and, as such, was entitled to deference from the courts. Of course, in this case, there wasn’t anything for the courts to defer to, so Justice Karakatsanis simply made up reasons that the commission might have offered for its conclusion, and pretended to defer to that. 

In commenting on this case, I said that this was tantamount to Justice Karakatsanis “playing chess with herself, and contriving to have one side deliberately lose to the other”. As for her insistence on deferring to the purportedly expert commission on an issue on which the commission had no real expertise, I thought it was reflective of a “post-truth jurisprudence”. I stand by those comments. The Supreme Court occasionally claims that its approach to administrative law focuses on giving effect to the intentions of the legislatures, but this is simply not so. (Co-blogger Mark Mancini’s contribution, especially its discussion of Canada (Citizenship and Immigration) v Khosa, makes this point well.) The wishes of legislatures that want the courts to police administrative decision-makers are routinely ignored, because the Supreme court trusts the executive more than it trusts itself. It’s a sad state of affairs and, as Mark has observed, there is little hope of improvement.

Day Eleven: Geoff Sigalet

Post-doctoral Fellow at the Queen’s Faculty of Law and Research Fellow at Stanford Law School’s Constitutional Law Center

Thanks very much to Leonid Sirota and Mark Mancini for kindly inviting me to contribute to this symposium. I thought about which cases to include in my list of the “worst” Supreme Court cases of the 1967-2017 period during Christmas, and I hope that my list isn’t too out of touch with the charitable spirit of the season. This list is largely influenced by my own Madisonian argument for the need for constructive dialogue between Canadian legislatures and courts about Charter rights. My theory of rights dialogue is just one among many, and my ideas on dialogue and rights are significantly indebted to the work of Dennis Baker and Grégoire Webber (among many others).

Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 (Sauvé II)

In my view, the Court deserves applause in cases where it not only exercises a proper degree of deference to Canadian legislatures, but is willing to recognize a measure of co-ordinate autonomy in constructing the indeterminate meaning of Charter rights. In R v Mills the Supreme Court explicitly used the idea of dialogue to justify its reasoning about the meaning of the Charter’s sections 7 and 11(d) right to a full answer and defence in criminal trials as it relates to the privacy rights of victims. It also considered how a statutory reply to an early decision (R v O’Connor) constructed the meaning of such rights in relation to the privacy rights of the accused, but also the Charter’s section 15 and 28 sexual equality rights of victims, and the public interest in encouraging the reportage of sexual assault, especially the sexual assault of women and children.  The opinion characterized the relationship between Parliaments and the judiciary as one of “dialogue”. It claimed that: 

The law develops through dialogue between courts and legislatures … Against the backdrop of O’Connor, Parliament was free to craft its own solution to the problem consistent with the Charter.”

This suggests that Parliament has autonomy in constructing the nature and scope of Charter rights.

But the Court also deserves criticism when it departs from this constructive type of dialogue. A few years after Mills, in Sauvé II a majority of judges on the Court repudiated its previous commitment to co-ordinate dialogue. The Court invalidated a legislative reply to a prior judicial ruling that had seemed to invite inter-institutional disagreement on whether the Charter’s section 3 protections for voting rights secured prisoners’ the right to vote. The Court repudiated Parliament’s attempt to reply to the Court’s prior invalidation of an 1898 statute disqualifying all prisoners from voting during their imprisonment with an enactment limiting disenfranchisement to convicted criminals imprisoned for a period of 2 years or more. The majority opinion argued that “[t]he healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again’.”

This was at odds with the more constructive ideal of dialogue the Court embraced in Mills. In my view, the much narrower role for legislatures in the more interrogative ideal of dialogue embraced in Sauvé II presupposes that Courts are the supreme authority over the meaning of Charter rights, and this premise lacks a textual basis in the Constitution Act. The type of dialogue represented by Sauvé II involves courts interrogating legislatures for justifiable reasons for infringing rights. This type of dialogue threatens both democratic control over the meaning of indeterminate rights, and respect for rights as specifications of justice that should not be easily overridden.

Even setting aside the difficulties attending the interrogative ideal of dialogue articulated in Sauvé II, the case rested on questionable legal and philosophical reasoning about the construction of voting rights. While the text of section 3 of the Charter limits the right to vote to citizens, the Court did not consider at any length the question of whether the public meaning of entrenching the right to vote was thought to extend to prisoners (in spite of the interesting fact that the Joint Committee on the Constitution excised an internal limitation clause qualifying this right after debates concluding that it was vague and unnecessary). Instead, the Court extended the right to vote to prisoners without much comment, and then engaged in a problematic proportionality analysis of the justification of infringing their right to vote. Although the Court granted that the legislation had legitimate aims (encouraging civic responsibility and punishing crime) it found the enactment disproportionate to these aims in a way that appeared to deny the possibility of any proportionate limitation on the right to vote. Writing for the majority, McLachlin C.J. argued that limitation on prisoner voting was disproportionate to these ends because the “obligation to obey the law flows from the fact that the law is made by and on behalf of citizens”. This claim was not philosophically reconciled with the “practical matter” that “we require all within our country’s boundaries to obey its laws, whether or not they vote.” Liberal political philosophers such as H.L.A. Hart and John Rawls would have been puzzled at the majority’s reasoning on this matter and its invocation of social contract theory.

R v Oakes, [1986] 1 SCR 103

Like many of the other contributors to this symposium, I consider the approach to Charter rights developed in Oakes to have created confusion about the meaning and specification of rights. In turn, I think that this confusion has affected the norm of dialogue informing interactions between legislatures and the courts concerning Charter rights. Oakes introduced the European “proportionality” approach to reasoning about whether Charter rights are reasonable limited according to section 1. The Oakes test encourages courts to focus less on the scope and nature of rights as they relate to other rights and constitutional provisions, and more on the legitimacy (i.e. importance), suitability (i.e. rationally connected), necessity (i.e. minimally impairment), and proportionality (stricto sensu) of the state’s “infringements” of rights. But these latter questions lead both courts and legislatures to analyse rights in a utilitarian register. They orient judicial interactions with legislatures towards determining whether the reasons and means by which legislatures “infringe” rights are justifiable. This can have the unfortunate side-effect of decreasing legislative responsibility for constructing the indeterminate meaning of rights.

Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

This case involved Albertan Hutterites who objected to having their photographs appear on their driver’s licences and sought accommodation as a matter of their right to freedom of religion under section 2(a) of the Charter. The majority decision conceded that the provincial regulation infringed section 2(a), but held that the legitimate and suitable government aim of having a photo database lacking exceptions minimally impaired the right, and that Alberta’s interest in the security of its licencing system outweighed any case-by-case harm to the religious freedom of individuals.

The majority opinion was problematic because it failed to establish why the photographs of 250 Hutterites were necessary to maintaining a secure licencing system (in a province with 700,000 citizens without licences at that time). The majority also erred by implying both that the lack of accommodations really only threatened the religious claims of individuals, and that infringements on freedom of religion deserve more deference due to the “broad scope” of the right. The Court has since largely corrected the view that religious freedom cannot be unjustifiably limited in relation to a religious community (e.g. Mounted Police Assn. of Ontario v Canada). But, in my view, the Court has unfortunately continued Hutterian Brethren’s spirit of treating abridgements of religious freedom as worthy of less scrutiny than other rights and interests. However, in the spirit of the season, I should note that Abella and LeBel JJ.’s dissents are fantastic, especially LeBel’s critique of proportionality analysis.

Schachter v Canada, [1992] 2 SCR 679

Joanna Baron has already written persuasively in this symposium about the difficulties created by the Court’s understanding of judicial remedial powers in Schachter v Canada. In Schachter, the Court decided that the separation of powers should not strictly limit the ability of courts to “read-in” measures to remedy unconstitutional legislation according to section 24 of the Charter (even though such legislation is, per section 52 of the Constitution Act, 1982, null ab initio). I agree with Ms. Baron and Dean Robert Leckey that this type of expansion of the remedial powers threatens to spill the banks of the traditional judicial role.

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624

Eldridge is in a way the fruit of the problems with Schachter. In Eldridge, the Court interpreted the equality guarantee in section 15(1) of the Charter to require B.C.’s public health care system to include specific resources for deaf patients. The Court went so far as the specify that “sign language interpretation will be required in most cases” and that the cost of providing such interpreters is “only 150,000”. As Professor Baker points out in his book’s excellent discussion of the case, in Eldridge the Court not only potentially expanded the judicial role into the legislative function, but did so in a way that appears to have circumvented enumerated protections for legislative control over public spending in sections 53 and 54 of the Constitution Act, 1867.

A belated Merry Christmas and Happy New Year to all!

Day Ten: Mark Mancini

We at Double Aspect are very excited to host this important symposium. As I’ve written before, I think it is necessary for observers to turn a critical eye to the Supreme Court’s cases. Those of us interested in doing so should not shirk behind the ceremony of the bench.

Here is my list of the 5-worst Supreme Court cases of the last generation. My North Star is the separation of powers between the courts and the political branches, and the division of powers between the provinces and the federal government. These fundamental protections are necessary for any constitutional democracy, and are logically prior to any bill of rights, which are simply mere “parchment barriers.” These cases, in their own way, undermine these important structural protections.

  1. Doré v Barreau du Quebec, 2012 SCC 12

Doré has received criticism on so many levels, but my concern is the separation of powers problem it creates. It sacrifices the supervisory function of courts for the sake of the Court’s fascination with a pop-psychology sort of “expertise.”

Doré rests on the assumption that technical policy expertise in the decision-maker’s ambit transfers seamlessly to constitutional matters arising in that ambit [46-47]. This assumption is academic at best, and completely wrong at worst. It rests on the mistaken view that we can fuse together questions of law and “policy” in one mishmash of questions that administrative decision-makers can address relying on one well of policy expertise. But this is not the way human knowledge and information works. Agencies can be viewed as information processors, and when processing information, they also prioritize it. Unless decision-makers receive constitutional training (like lawyers), they could undervalue the importance of certain relevant facts applicable to constitutional problems.

The effect of this myth of expertise is the dilution of a court’s recognized supervisory role over constitutional matters (see Hunter v Southam). No one denies that a challenge to a government law is analyzed on a correctness standard. Of course, the Oakes test contemplates deference (Doré, at para 57). But deference to a legislature—a recognized constitutional actor—is functionally different than deference to a quango. We defer to legislatures for good reasons (for example, because a question is inherently political, best amenable to resolution by legislatures), whereas the reasons for deference to administrators on constitutional matters are weak and unproven.

  1. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Though this list appears in no particular order, Newfoundland Nurses is my pick for the worst case of the last 50 years. Thinly reasoned but consequentially harmful to the institutional roles of Parliament and the courts, Newfoundland Nurses extended a sentence in Dunsmuir (which itself grabbed a theoretical prescription from an academic article) that courts should defer to reasons that “could be offered” by decision-makers [12-13].

Newfoundland Nurses responds to the classic “insulation” problem in judicial review: the decision-maker has not offered enough information for the court to be sure that relevant issues were addressed. Understandably, courts cannot undertake the constitutional supervisory function of judicial review if they cannot determine the basis for the decision. Newfoundland Nurses tells us that courts, in the name of deference, should not strike a decision on this basis alone.

But it is no answer to this problem for courts to create reasons for the decision-maker. After all, Parliament delegated power to administrative decision-makers, not the court, to decide particular cases (see here, and Stratas JA’s reasons in Bonnybrook). The legislature’s delegation, absent constitutional objection, should be respected by courts. But when courts attempt to cooper up decisions that are otherwise left wanting, they disrespect Parliament’s delegation, and they end up reviewing a “decision” of the court’s creation, rather than the one actually rendered.

Ironically, Newfoundland Nurses instantiates a rule of deference that isn’t really deferential. On one hand, courts—in the name of respect for legislative intent and the unhelpful metaphysical idea of a “culture of justification”—defer to administrative decision-makers. On the other, courts build up defective reasons to save decisions.

  1. Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12

The Federal Courts Act provides grounds of review which tell courts when they could allow judicial review. The question in Khosa was whether these grounds of review superceded the common law judicial review analysis set out in Dunsmuir, and relatedly, what the position of a court is on judicial review in absence of statutory direction.

While Justice Binnie for the majority began his analysis by noting that Parliament need not specifically direct deference for it to be applied, Justice Rothstein (in concurrence on result) had the better of the argument by reasoning that a free-standing idea of expertise amounts to a court-amendment of duly enacted legislation. The reason is this: Parliament could repeal or reorganize various administrative decision-makers at any time. It follows that the legal justification of the administrative state is statutory law. How a decision-maker is reviewed is also a function of statute. Therefore, a court cannot subvert statutory language in service to its own policy goals, in this case, some ethereal “judicially determined expertise” [96].

Regarding the Federal Courts Act, for Justice Binnie, questions of home statute interpretation are reviewed on a reasonableness standard, regardless of legislative guidance [44]. This allowed him to conclude that the grounds of review specified in the Federal Courts Act were largely silent on the standard of review, permitting deference. But because there is no reason to presume deference in absence of statutory language, Justice Rothstein was clearly right to conclude that most of the grounds in the Federal Courts Act set the standard of review as correctness [72]. While the common law Dunsmuir framework can inform the review of federal decision-makers, it should not resist the Federal Courts Act.

  1. General Motors v City National Leasing, [1989] 1 SCR 641

The Supreme Court interprets Canada’s division of powers to permit overlap between the orders of government, in the name of “cooperative federalism” (Securities Reference II, at para 18). Modern regulation is said to require nothing less. General Motors is perhaps the best example of the folly of this assumption from the perspective of the exclusive division of powers.

General Motors concerns the case of a statutory provision that facially intrudes on the other order of government’s jurisdiction, but that are included in an otherwise valid statute. Since the days of the Privy Council, it was recognized that such provisions were not constitutionally problematic if they were necessarily incidental to the broader legislative scheme. Slowly but surely, courts diluted this strict test, next permitting only a “rational, functional connection” between the provision and the scheme (Papp; Zelensky). General Motors is the cherry on top. It creates a shifting standard—depending on the severity of the intrusion of the provision, a more or less strict test would apply—sometimes the rational-functional test, sometimes the necessarily incidental test. [669].

But this shifting standard does not match onto the division of powers. As Asher Honickman persuasively argues, the division of powers was not originally understood to permit overlap, and instead was meant to be an exclusive distribution of powers. This means General Motors goes wrong in two ways: first, it sometimes permits a “rational, functional test,” which permits a great deal of overlap. A necessarily incidental test, while also permitting some overlap, only does so to enable the enacting government to legislate to the full extent of its power; without the impugned provision, the rest of the statute would fall. Second, General Motors purports to measure the “seriousness” of an intrusion. Not only does this encourage judicial navel-gazing, but one can’t get a little bit pregnant. The exclusive division of powers prevents intrusion by one order of government on the other, no matter its “seriousness,” except in the narrow case of necessity.

  1. Re Residential Tenancies Act, [1981] 1 SCR 714

Residential Tenancies sets out the test for when provinces (or the federal government) want to divest courts of adjudicative power in favour of statutory tribunals. A divestment of this kind implicates s.96 of the Constitution Act, 1867, which has been interpreted to protect the judicial function of the superior courts from provincial abrogation (see Crevier, at 237). Even though a power may have been considered judicial in 1867, provincial legislatures can attach judicial functions to a tribunal within a “broader institutional framework” [733-734].

From a separation of powers perspective, Residential Tenancies incentivizes governments to regulate broadly order to enable the attachment of a purely judicial function to a tangentially related legislative scheme. This erodes the power of courts, and incentivizes mass delegation to any tribunal that can be characterized as promoting the “collective good.” This amorphous term enables Parliament and the legislatures to “regulate away” the judicial functions contemplated by the historical understanding of s.96, subverting the hierarchy of laws.

On the division of powers of side, broad provincial delegation eats away at the function of uniformity that is achieved by s.96. A federal power of appointment is designed to vest a power to create uniformity, while still respecting provinces (see MacMillan Bloedel, at para 15). But if provinces can eat away at judicial functions originally understood as being a matter of federal control, the uniformity function slowly ebbs.